By Kate Kendell, Esq.–
October is barely half gone, but in the past two weeks we witnessed oral argument before the U.S. Supreme Court in a major LGBT case, a half-day long town hall on LGBT issues with the top-tier candidates for the Democratic nomination, and the further erosion of our constitutional democracy as we watch in horror the rapid devolution in the mental state of the current occupant of the White House. Even for the circus of the past three years, this seems a notable moment.
The two cases argued before the Court on October 8 make the case that discrimination based on sexual orientation and gender identity should be unlawful under Title VII, which prohibits discrimination on the basis of sex. During my time as Executive Director at the National Center for Lesbian Rights, we made this argument to courts and policy makers countless times, with mixed success.
A number of states, local municipalities, and the Obama EEOC (Equal Employment Opportunity Commission) enacted laws or issued opinions protecting LGBTQ individuals from discrimination. But Congress never acted, and when the U.S. Supreme Court last addressed the issue over three decades ago, they deflected. The lack of explicit protections leaves many LGBTQ (especially transgender) individuals vulnerable to the bigotry and biases of employers. Many have lost jobs, livelihoods, and stability over unchecked discrimination.
All of these harms were laid out for the Court, but in a surprise to no one, the ultimate outcome is far from certain. Several of the most anti-LGBTQ Justices openly expressed disdain for the idea that Title VII should cover us, including Chief Justice John Roberts and Justice Alito. The four more progressive and humane Justices, Including Breyer, Ginsberg, Kagan, and Sotomayor, all signaled our outright expressed support for LGBTQ individuals to love free from discrimination in employment.
Oddly enough, it may be that the key swing vote lies with Justice Gorsuch. Gorsuch is a hardline conservative, but he is also what is called a “textualist,” meaning that he looks to the “plain language” of a statute. Gorsuch indicated that he views discrimination against a gay man because of his sexual orientation as quite clearly “discrimination based on sex.”
Because this is one of the most significant cases of the 2019–2020 term, we should not expect a ruling until June 2020. I would not plan a victory party, but neither would I count us out. In America in 2019, it is deeply unsettling that our worth in civil society is such a close call.
The juxtaposition between the argument and the LGBTQ Democratic Town Hall just a few days later calls to mind Dickens’ “best of times, worst of times.” For the first time ever, every top-tier Democratic candidate expressed a vision for our lives and our futures that was deeply thoughtful, resonant, and inclusive. There were many highlights over the 4 1/2 (!) hours, including Senator Kamala Harris’ stating her pronouns (Cuomo’s idiotic response notwithstanding), Senator Elizabeth Warren’s epic response to a question about supposed opposition to our freedom to marry (Google it), and Pete Buttigieg’s thoughtful response to the powerful protest by Trans Lives Matter.
It is important to note milestones even in the midst of the s–t-show that is the Trump Administration. This event was a landmark moment that sets the tone for every Democratic nomination contest to come.
About the s–t-show … I know it is exhausting to witness Trump’s relentless demeaning of both the office of the presidency and the reputation of our nation. There is no depth to which he will not sink. He is a deplorable human, aided and abetted by a GOP bereft of principle.
But we cannot turn away. We cannot disengage. The next 13 months will be the most consequential of our lives. What we do, how we fight, how we show up will determine much of the rest of our lives. But we’ve done this before, maybe not exactly this, but we know how to stay the course; we know how to fight back; we know not to sit on the sidelines. So, keep a pot of coffee on and embrace your rage. We need it now more than ever.
Kate Kendell is the former Executive Director of the National Center for Lesbian Rights and now works with Take Back the Court and the Southern Poverty Law Center.
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